Seeking Justice

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Summary

During
five years of armed conflict in the Democratic Republic of Congo, tens of
thousands of women and girls in the eastern part of the country have suffered
crimes of sexual violence. The signing of a peace agreement in 2002 and the
installation of a transitional government in 2003 raised hopes that both the
military conflict and related abuses would end. But in eastern Congo
women and girls as young as three years old continue to be targeted for
crimes of sexual violence. Some have been gang-raped or abducted by combatants
for long periods of sexual slavery. Some have been mutilated or gravely injured
by having objects inserted into their vaginas. Some who fought back when
attacked have been killed. In a number of cases men and boys have also become
victims of crimes of sexual violence.

As
detailed in this report, perpetrators of sexual violence are members of
virtually all the armed forces and armed groups that operate in eastern Congo.
Such crimes were committed by the former Congolese Rally for Democracy-Goma (RCD-Goma),
a Rwandan-supported armed group that controlled large parts of eastern Congo
during the war. The RCD-Goma and its Rwandan allies had a number of adversaries
Mai Mai rebels, and Burundian and Rwandan Hutu armed groups who also
committed widespread acts of sexual violence. Further to the northeast, other
armed groups fought for control over territory, and also carried out frequent
acts of sexual violence. Among those were the Congolese Rally for Democracy Kisangani Liberation
Movement (RCD-ML), the Movement for the Liberation of Congo (MLC), and the
Union of Congolese Peoples (UPC) and the Front for National Integration (FNI)
in the Ituri region. Members of the former government army, the Congolese Armed
Forces (FAC), and of the new national army known as the Armed Forces of the
Democratic Republic of Congo (FARDC) are also guilty of sexual abuses.

Victims
of crimes of sexual violence have enormous needs for medical, psychological and
social support; unless such needs are met, they have difficulty beginning and
persevering in efforts to bring the perpetrators of the crimes to justice.
Congolese nongovernmental organizations (NGOs) were the first to assist the
victims but growing support now comes from various international agencies and
international NGOs. Among the services now offered in a few communities is
assistance in initiating legal action against those suspected of responsibility
for the sexual violence.

In
the past women and girls who had been raped generally kept silent, fearing stigmatization
by those who blame the victim. Many feared reprisals from perpetrators if they
reported the crimes. But in the last two years, a small number of victims of
sexual violence have sought justice from the Congolese judicial system. This
report documents such efforts and the reasons why they often failed, including
deficiencies in the law, the unwillingness of military and other officials to
treat sexual violence as a serious offense, lack of protection for the victims,
and various logistical and financial impediments linked to the dilapidated
state of the judicial system.

The
report also examines the handful of prosecutions that ended in the conviction
of persons accused of crimes of sexual violence and describes deficiencies that
resulted in violations of the rights of the accused to a fair trial. In
addition, there was insufficient attention to the needs of the victim, and no
protection for victims and witnesses. The report also addresses the failure of
military prosecutors to examine the culpability and command responsibility of
superior officers when sexual violence was part of ongoing crimes under their
command.

The
Congolese government, faced with the overwhelming task of delivering justice
for the many crimes committed during the war, has started to rebuild its
fractured judicial system. Its' most notable success thus far was the
restoration of a functioning court in Bunia, in Ituri district of Orientale
province. The report discusses prosecutions that resulted in ten convictions on
rape charges by this court. It examines reforms needed in laws and in the
operation of the judicial system, including providing adequate protection to
victims and witnesses.

As a
party to the Rome Statute of the International Criminal Court (ICC), Congo
has referred crimes under the Court's jurisdiction to the ICC prosecutor who
has begun an investigation. This development constitutes a real hope for
justice for the Congolese people. The huge scale of serious crimes involving
sexual violence should be a priority concern of that investigation. However,
the ICC will be able to investigate only a very small number of people bearing
the greatest responsibility for serious crimes in Congo and the national courts will
have to deal with the majority of the crimes committed during the war.

International
donors and the United Nations (U.N.) have provided assistance to victims,
although not sufficient to meet the overwhelming needs of the crisis. The
European Union (E.U.) has supported reforms in the judicial system, particularly
the effort to re-open the court in Ituri.

A
U.N. peacekeeping operation known as the United Nations Mission in the
Democratic Republic of Congo (MONUC) has been sent to monitor the peace process
and protect civilians. In recent months MONUC human rights staff have
documented and made public grave cases of human rights violations and have in
some instances assisted victims of crimes of sexual violence to institute
judicial proceedings. However MONUC has often failed to protect civilians,
including those targeted for sexual violence. Worse, some MONUC peacekeepers
and civilian staff have discredited the operation and the U.N. more generally
by committing crimes of sexual violence and by sexually exploiting women and
girls.

This
report is based on research carried out in North Kivu, South
Kivu, and Ituri during 2003 and 2004, including interviews with
victims of sexual violence, relatives of victims, judicial authorities,
political authorities, and lawyers. The report draws also on extensive consultations
with the staff of local and international nongovernmental organizations and of
various U.N. agencies. The names of all victims and their families
are pseudonyms, to protect their security.

Recommendations

To the Congolese government:

Enforce
compliance with international humanitarian law (the laws of war) among all
members of the armed forces, especially regarding the treatment of civilians.

Ensure
that the military justice system fully investigates and prosecutes allegations
of sexual violence by members of the armed forces. Refer cases to the civilian
courts when they are better able to provide competent, independent, and
impartial justice.Prosecutions should
not only examine those directly responsible for offenses, but the complicity
and command responsibility of superior officers.

Dismiss
perpetrators of sexual violence from the army and vet nominees to posts of
command responsibility to ensure that they have not committed violations of
international humanitarian law, including crimes of sexual violence.

Provide
training to members of the armed forces on human rights law, humanitarian law
and on the prevention of HIV/AIDS.

Develop a public health policy with
regards to sexual violence:

Establish
a Cabinet Committee on Sexual Violence, composed of the ministers of Women's
Condition, Human Rights, Health, Defence, and Justice to draft and adopt a
national plan to address the issue of sexual violence in a comprehensive
manner.

Provide
victims of sexual violence with appropriate and timely health services. These
services should include appropriate counseling, voluntary testing, and
treatment for those affected with HIV/AIDS. Develop clear criteria for the
selection of beneficiaries and design professional support services. Cooperate
with donors in their efforts to provide coordinated and professional medical
and psychological assistance to victims of sexual violence.

Take
action to prevent the spread of HIV/AIDS among victims of sexual violence, and
treat those who are infected. In particular ensure that post-exposure
prophylaxis (PEP) and drugs for the prevention of mother-to-child transmission
are available to clients in a timely manner. Provide information about
HIV/AIDS, the medical services available, and offer voluntary and confidential
HIV testing and counseling. Improve treatment of opportunistic infections of
HIV/AIDS patients.

Develop
a national standard protocol for medical examinations following sexual attack,
in line with the World Health Organization (WHO) standard protocols for adults
and children. Require hospitals and health centers to follow the defined
procedure.

Reform the judiciary to enable fair
prosecution of crimes of sexual violence:

Train
police, prosecutorial, and judicial staff on gathering and analyzing evidence,
including forensic evidence, in cases of sexual violence; ensure personnel have
adequate funds to carry out their duties effectively.

Increase
the number of personnel among judges, magistrates, and investigating officers (Officiers
de police judiciaire), with expertise in investigating and prosecuting
crimes of sexual violence. Consider creating special units for women's
rights within the judicial police and the Prosecutors' offices.

Ensure
that all trials are held in accordance with internationally recognized
standards of due process. Police, prosecutorial, and judicial personnel must
take all necessary measures to assure the security of victims and witnesses,
including holding in camera
(non-public) proceedings, if necessary, and the provision of police protection.

Ensure
that police, prosecutorial, and judicial personnel are trained in working with
traumatized victims and witnesses and that they provide timely information
about the proceedings.

Ensure
that all minors are tried in Juvenile Justice Chambers (Chambres d'enfance dlinquante) and that the chambers give
priority to social reintegration programs, rather than prison sentences, for
minors who have committed acts of sexual violence.

Make
rebuilding and reforming the justice system a priority and ensure that it
cooperate with international authorities investigating violations of
international humanitarian law. Create mobile investigative teams to facilitate
prompt prosecution of crimes.

Create a legal
framework that addresses sexual violence in conflict as an international crime:

Urgently
adopt the ICC implementing law into Congolese domestic legislation. The law
codifies crimes against humanity and war crimes, including sexual crimes, and
expands the jurisdiction of the civilian judiciary to include war crimes and
crimes against humanity committed by members of the armed forces.

Revise
the law on rape in the Congolese Criminal Code or adopt legislation that
addresses sexual violence more comprehensively, to include sexual crimes such
as penetration with objects and male rape.

Incorporate
war crimes and crimes against humanity into the Congolese Criminal Code,
including by specifying as war crimes sexual violence and other gender-based
crimes.

Revise
the Congolese Criminal Code to provide specific protective measures to victims
of crimes of sexual violence, such as ensuring confidentiality of victims and
witnesses and establishing a system of physical protection before, during and
after the trial.

Address sexual violence against men:

Assess
the scope of sexual crimes committed against men and boys and devise a strategy
to raise awareness of the problem, assist the victims medically and
psychologically, and prosecute such crimes.

To armed groups operating in eastern Congo:

Take
all necessary steps to ensure that all combatants and others under your command
act in full accordance with international humanitarian law. Deliver combatants
suspected of crimes, including acts of sexual violence, to Congolese judicial
personnel.

To the United Nations, multilateral donor agencies and donor
governments:

Provide
greatly increased support for medical, psychological, social, and legal support
to victims of sexual violence.

Provide
assistance to the Congolese government to reform and rebuild the justice system,
and to assist women and girls victims of sexual violence in taking their cases
to Court.Insist that members of
Congolese civil society participate in making decisions about judicial reform.

Ensure
that a vetting process is implemented in all military integration programs
supported by donors' funds.

Ensure
that military training supported by the donors includes training in
international humanitarian law, including the prohibition of crimes of sexual
violence.

Support
efforts by the Congolese government to provide medical and psychological
assistance to victims of crimes of sexual violence, including to those coping
with HIV/AIDS, and to children born of pregnancies that resulted from rape.

To the United
Nations Security Council:

Establish
a mixed Group of Experts, appointed by the U.N. Secretary-General, to recommend
possible justice mechanisms to investigate and prosecute war crimes and crimes
against humanity committed before the Rome Statute of the ICC entered into
force in July 2002.

Ensure
that MONUC, under its expanded Chapter VII mandate, does everything in its
power to protect civilians against attacks, including sexual assaults.

To the ICC:

Ensure
that crimes of sexual violence committed in eastern Congo that constitute war crimes or
crimes against humanity are made a priority of investigations and
prosecutions.

Sexual
Violence in the Congo War: A Continuing Crime

During five years of armed conflict in the Democratic
Republic of Congo (DRC, or Congo),
tens of thousands of women and girls[1]
were raped or otherwise subjected to sexual violence.[2]Victims whose cases Human Rights Watch
documented were as young as three years old. In a number of cases men and boys
were also raped or sexually assaulted. The World Health Organization investigated
the incidence of rape in the two provinces of South Kivu and Maniema and in the
two cities of Goma (North Kivu province) and Kalmie (Katanga province) and concluded
that some forty thousand persons had been raped.[3]

Combatants of most armies and armed groups in eastern Congo
committed acts of sexual violence both before and after the establishment of
the transitional government.[4] Alleged
perpetrators include fighters of the former rebel movements, the RCD-Goma, the
MLC, and RCD-ML, and soldiers of the former national army, the FAC, now all
supposedly part of an integrated Congolese army. Perpetrators also include
combatants of local armed groups, Mai Mai (groups resisting outside control),
Burundian and Rwandan Hutu armed groups, and the ethnically-based UPC and FNI
based in Ituri.[5] Civilian
and military judicial authorities and leaders of armed groups rarely punished
perpetrators of these crimes. On occasion military commanders and the heads of
armed groups seem to have encouraged the use of sexual violence as a way to
terrorize civilians.

Following protracted negotiations, the war was declared over
and a transitional government was installed in June 2003. But military
operations continued in eastern Congo
and as recently as December 2004, civilians still suffered from attacks,
including acts of sexual violence. By late 2004, the cumbersome arrangement for
sharing power among former belligerents faltered and two of the major partners
showed readiness to quit. Military forces continue to be loyal to the rebel
movements that spawned them and remain only nominally integrated into the new
national army, the FARDC. Mutinous forces of the RCD-Goma rebelled in June and
again in December 2004 against their nominal commanders.Local armed groups generally continue to
command their home areas, paying little heed to officials of the national
government. In Ituri, a much contested district of Orientale province,[6]
ethnically-based armed groups continue to fight against each other as well as
against soldiers of the national army and the U.N. peacekeeping force MONUC.
According to U.N. expert panels one on resource exploitation, one on
violations of a U.N.-imposed arms embargo on eastern Congo
officials of neighboring Rwanda
and Uganda
assist several of these armed groups, thus promoting the continuing armed
conflict.[7]

The cases presented here illustrate different kinds of
sexual violence as well as the widespread nature of the crimes, both in terms
of geography and in terms of the numbers of groups whose combatants have
committed these crimes.

Patterns of sexual violence

There were several
patterns of sexual abuse against civilians.[8] Soldiers and rebel fighters engaged in acts
of sexual violence in the context of military confrontations, to scare the
civilian population into submission, punish them for allegedly supporting enemy
forces or to provide gratification for the fighters, sometimes after a defeat.
In Ituri where armed groups of different ethnicity have fought each other for
years, combatants often used sexual violence to target persons of ethnic groups
seen as the enemy.[9] According to the October 2004 estimate of
humanitarian agencies, eight to ten persons were being raped each day in the
town of Bunia
and a limited number of other locations in Ituri.[10] As the representative of one women's NGO
commented, "We could write a whole library about the use of rape here in Ituri.
It is just too awful. We now have to live with the legacy of all this and I
don't know how we will cope."[11]

Combatants, singly or in small groups, engaged in
opportunistic attacks, targeting women and girls in their homes or who were
going about their daily business, walking to the market or tending their
fields. Cases of sexual violence became so frequent in some areas that women
and girls stopped working in the fields or going to the market, took to hiding
in the forest at night instead of sleeping in their homes, and sometimes fled
their home area altogether.

Combatants living in the forest abducted women and girls and
kept them, sometimes for months at a time, in their camps to provide sexual and
other services traditionally considered "women's work" cooking, cleaning, and
fetching water or wood.[12] For
example, during the war, Mai Mai rebels held large numbers of women in the
Shabunda region of South Kivu and in Masisi in North Kivu.
Rwandan Hutu rebels abducted women and girls and took them to their bases in
the Kahuzi-Biega forest, and Burundian rebels of the Forces for the Defense of
Democracy (FDD) held women and girls at Rukoko forest in the Rusizi valley of South Kivu.

Waiting
for peace to come: sexual violence after June 2003

Despite the establishment of a supposedly unified
transitional government, the violence in eastern Congo continues. Women and girls,
still waiting for the promised peace, continue suffering sexual assaults by
combatants. In addition, they have been preyed upon by common criminals who are
reportedly increasingly perpetrating acts of sexual violence in some areas of North Kivu.[13]

In September 2004, Centre Olame, a Catholic women's center
in Bukavu, was receiving over two hundred new cases of sexual violence each
month from different parts of South Kivu, a
sharp rise from late 2002 when the center received about fifty cases a month.[14] Between
January and May 2004, Panzi hospital, also in Bukavu, treated 1,124 victims of
sexual violence.[15] Between
August 2003 and January 2004 the hospital
of Mdecins Sans Frontires in the
small town of Baraka
treated more than 550 rape victims, many of whom had been sexually assaulted
after June 2003.[16] Baraka is
located in Fizi territory, South Kivu
province, the scene of heavy fighting and grave abuses during the war.

On May
26, 2004, a renegade commander, Col. Jules Mutebutsi, rose up
against the newly created government army. Together with another renegade, Gen.
Laurent Nkunda, and according to a U.N. report backed by officers of the
Rwandan army, Mutebutsi led his forces to take control of Bukavu on June 2, 2004.[17]

The mutinous fighters went from house to house in Bukavu, raping
and looting. Many women and girls who feared rape went into hiding. In the
Bukavu neighborhood of Kadutu, some one hundred women and girls took refuge in
a local church, wearing extra layers of clothing to hinder potential rapists.

On June 3 the fighters entered a home where four teen-aged
girls were hiding. They found the girls, demanded money, and then raped them,
each more than one time. In another incident the same day, six renegade
RCD-Goma soldiers gang-raped a woman in front of her husband and children,
while another soldier raped her three-year-old daughter. After the rape, the
fighters looted the house taking most of the family's possessions. In another
case, on June 4, six fighters raped two three-year-old girls who were in hiding
with ten other women and girls. They reportedly told the women, "We're going to
show you that these girls are women like you."[18]

One hundred and sixty-nine women and girls who had suffered
sexual violence in the May-June combat sought help from the Centre Olame
between June and September 2004. One hundred and seventeen said they had been
attacked by combatants of Mutebutsi's and Nkunda's forces.[19]
Fifty-eight victims of sexual violence in May and June sought help from Panzi
hospital by the end of July, according to staff there.[20]

Renegade forces under Nkunda's command, based in the Goma
region, also committed acts of sexual violence in villages outside Bukavu in
the days before their assault on the city. Lonie W.,[21]
a middle-aged woman from Minova, a small town on the road from Goma to Bukavu,
described the abuses against her nieces at the end of May:

My older sister was killed in the crossfire. Her three
daughters were raped in the field, they were thirteen, fourteen, and
eighteen-years-old. The thirteen-year-old died. Four men raped her. They had
spread her arms and legs and held her down.I had been with her but hid in a banana tree and watched what happened.
Afterward she started to vomit blood, we brought her to Kirotshe hospital and
she died two days later. We have $18 debt at the hospital but don't know how to
pay it. The other two were brought to Bunia by the church for medical care.
They had been raped elsewhere; when they came home they had already been raped.[22]

On May
30, 2004, three women who were in Katana town, about thirty
kilometers north of Bukavu, were raped by Nkunda's forces, one woman by five
combatants. The men also systematically looted houses in and near Katana.[23] According
to residents of Minova, Nkunda's forces raped other women and girls when they
withdrew from Bukavu back to Minova.[24]
In one case they raped a mother and her eight-year-old child. The child died
several days later of her injuries.[25]
Another woman was gang-raped by four fighters.[26]
Some women were too afraid to sleep in their own homes at night and others fled
to the larger town of Goma
in search of security.

Asked about the many reports of rapes by his forces, General
Nkunda denied that he had heard of any such cases.[27]There have been no investigations or arrests
reported of any of his fighters for the crimes committed in Bukavu.

Other sexual violence and exploitation by former
members of the RCD-Goma

On August
31, 2003, an RCD-Goma soldier assaulted and raped twenty-year-old
Marianne L. in Bunyakiri town, northwest of Bukavu.[28]
He first approached her on the street at about 7:00 p.m. and asked her to have sex with him. When she
refused, he shot her twice in the leg. As she fell down, he shot in the air to
scare away any observers and then raped her and afterwards threatened to kill
her. Marianne grabbed his gun and other people came to help her. The soldier
fled, leaving his gun and military beret behind. Marianne L. was taken to the
hospital where her leg had to be amputated below the knee.

In mid-2003, RCD-Goma was training girls and boys at a
military training centre called Nyamunyunu in South Kivu.
Some of the girls, who came from very poor families, had joined the RCD-Goma in
a search for security. But RCD-Goma forces raped some girls.In other cases the girls were coerced into
having sexual relations out of fear, or in an effort to ensure the means
necessary to survive. Anne M., a fourteen-year old girl, told a Human Rights
Watch researcher that she was pregnant as a result of having been raped by an
RCD-Goma commander.She said,

He sent me to his house to get some food. Then he came in
and asked me to help him make the bed. Then he closed the door and caught me.
Then other soldiers came behind to shut the door so he could finish his
business. That was the first and only time. He didn't say anything to me after
it happened. Before this time the commander had always said he would marry me
after the training. I had told him he would have to give a dowry to my family.
The MONUC people had come [to arrange for demobilization of minors], after that
he took me by force because he realized we would be leaving soon.

There was another girl at the camp who had the same problem
with her commander, but then when the training ended they married.She was eighteen. She was satisfied with
that; she's still at the camp. One of the other girls was also taken by force.[29]

In August 2003 MONUC arranged for the release of children
under eighteen years of age from the training camp.[30]

Sexual violence by Local Defense Forces in North
Kivu

Local Defense Forces (LDF) were established as an auxiliary
force of the RCD-Goma in 1999. Under the transitional government, they
continued to operate in North Kivu as a
private militia under the control of current Governor Eugne Serufuli. Many of
them were children and received only rudimentary training from RCD-Goma
soldiers. They were nominally under the command of civilian authorities named
by Serufuli. In February 2004 Serufuli announced that the LDF would be
dissolved and its forces would be integrated into the army and the national
police or would be demobilized. But many LDF appear to continue to operate
under the command of civilian authorities and even those supposedly integrated
into the army are said to retain their loyalty to the governor.[31]

Residents of North Kivu
complain of many abuses by members of Local Defense Forces, including rape. On
the morning of August 28,
2003, five LDF members attacked Marie T., a seventeen-year old
dressmaking student, as she walked to a funeral in her neighborhood in Goma.
She said the five men, whom she identified as LDF by their khaki uniforms and
plastic boots, hit and kicked her before raping her. She said,

I was a first-year student in dressmaking but I left
school because of what happened. I was ashamed because my classmates all knew
what had happened. My friends gossiped a lot about what had happened. I feel
okay now, but I'm sad.[32]

Sexual abuses by government armed forces, May-June
2004

According to local sources, government soldiers of the 10th
military region under Commander Mbusa Mabe also committed acts of sexual
violence at the time of the Mutebutsi-Nkunda uprising. Many of these soldiers
came from different former forces, such as the FAC, including Mbusa Mabe
himself, the MLC and Mai Mai. Fifty-two women who sought care at the Centre
Olame in Bukavu said they had been raped by government forces during these
weeks. The troops reportedly raped many of the women in Walungu, where they
were based while Mutebutsi and Nkunda's fighters controlled the town of Bukavu. In some cases,
they caught women who were fleeing Bukavu and in other cases, they attacked the
women and girls as the troops were returning to resume control of Bukavu.[33]

Sexual violence by members of the former RCD-ML in
Lubero, North
Kivu

In June 2003, the RCD-Goma took control of Lubero territory,
North Kivu, from the RCD-ML. The defeated
RCD-ML then committed grave abuses against civilians between June 19 and 22 in
and near Musienene, about thirteen miles south of Butembo. According to reports
received by the Center for Applied Legal Studies (CEJA), a human rights
organization based in Butembo, RCD-ML forces committed twenty-two cases of
sexual violence at this time, many of them against children.[34]Many more cases of rape may not have been
reported.

Sexual violence by former MLC forces in Ituri and
Equateur

MLC forces have committed numerous acts of sexual violence.
In a particularly egregious case of sexual abuse, forces of the former MLC
gang-raped about 120 women and girls in two villages in Mongala district,
Equateur province, on December 21 and 22, 2003.[35]
These former MLC fighters had recently been integrated into the new Congolese
army, the FARDC, and had revolted against their commander, whom they suspected
of having stolen the money meant to pay their salaries. In April 2004, MONUC
visited the villages and assisted the Military Prosecutor of the Congolese
armed forces in starting an investigation. In two days investigators received
119 complaints of rape and eighty-six complaints of looting. So far, no one has
been arrested or prosecuted for these crimes.[36]

Attacks by Rwandan Hutu combatants

Some ten thousand Rwandan Hutu combatants continue sporadic
military activity in eastern Congo,
a substantial number of them organized into the Democratic Liberation Forces of
Rwanda (FDLR).[37]
Combatants of many of these groups carry out human rights abuses against
Congolese who live in their vicinity including, rape, pillaging, and forcible
occupation of property. FDLR fighters have also sometimes been blamed for
crimes they did not commit as local authorities charge them with responsibility
for attacks committed by their own forces.

In the second half of 2003, Rwandan combatants based in the
Kahuzi Biega forest in South Kivu appear to
have stepped up attacks on Congolese living nearby. In October 2003, 35 percent
of cases of sexual violence registered at Panzi hospital (the most
well-equipped hospital in South Kivu) came
from Walungu, an area adjacent to the forest.[38]
Ten women reported having been raped by these combatants near Ninja. One of
them, Trse K.,a forty-three year old widow and mother of eight
told a representative of the Center Olame,

It was July
15, 2003, at about 1 pm.
I was at home. The Hutu came. They were looking for something to eat. I told
them I have nothing, neither at home nor at the banana plantation. They
discovered a heap of fresh earth and thought that I was hiding my treasure there.I told them it was the body of my child that
I had buried there three days ago. But they did not believe me. They started to
dig until they took out the child. Then they saw that it was really a body and
nothing else in there. When I saw it I started to cry and so did my other
children. Later, I went to the field to get some manioc. . . . They assaulted
me, I tried to resist but they were stronger.One of them managed to rape me. The other one kicked me with his foot
with disgust, as if to get some dirt out of the way. I fled leaving my basket
and manioc behind.[39]

Trse K. and the other women from Ninja also reported that
Rwandan Hutu rebels had permanently occupied some houses and forcibly evicted
the owners.

Rwandan Hutu combatants raped women and girls in North Kivu as well. Evelyne M., a middle-aged widow, was
attacked and raped in December 2003 by FDLR in Masisi Territory of North Kivu.
She said,

It was around Christmas. I was making a trip on foot of
about forty kilometers to sell a basket of flour. They were ten at least who
raped me. I knew some of them by face because they often come to our village;
but I don't know their names. I have a six-year-old son who was there when I
was raped. We were both beaten a lot with sticks and he still has medical
problems. I even fell unconscious, and spent several days in the bush on the
same spot without moving. Some people then came along, alerted the local chief,
and he sent people to transport me to a health center. They carried me and my
son on their backs.I had been really
badly beaten, and my clothes were taken. I was naked, so those who carried me
gave me clothes. Since then my uterus has collapsed, it moves around and water
and blood comes out, especially when I carry heavy jugs of water. It burns.[40]

It was only three months after the attack that Evelyne M.
reached Goma where she received care at a center run by a Congolese NGO for
torture victims. She had lacked the money to pay for the two-hour trip by car.[41]

In the first months of 2004, sixty-one victims of sexual
violence sought help from a center for victims run by the Congolese NGO,
Promotion and Support for Women's Initiatives (Promotion et Appui aux
Initiatives Fminines, PAIF) in Kalehe territory, north of Bukavu. All said
they had been attacked by Rwandan combatants.[42]

Attacks by Mai Mai

Women and girls in Shabunda territory, South
Kivu, complained of widespread rape by Mai Mai fighters in the
past. There continue to be reports of sexual violence by Mai Mai forces that
have not been integrated into the FARDC.[43]

In July 2003, Sophie M., a thirty-nine year old mother of
five, and eleven other women were attacked by about thirty Mai Mai fighters as
they made their way to their fields about 140 kilometers from Shabunda town.
She said,

I was raped by them in front of my husband. They held him
down while they did it. I was released afterwards because my husband and
children pleaded with them, and cried saying "They will kill maman." I was
raped by more than three men. I cannot remember the exact number because I lost
consciousness. Afterwards a neighbor helped me, because I was bleeding. She
boiled water and some herbs for me.[44]

Sophie M. reported that the Mai Mai abducted the other
eleven women after having raped them. Mai Mai fighters told her that the women
would serve other men in the villages while they are without women in the
forest. Sophie M. said that four of the eleven later escaped from the Mai Mai.
She continued,

The women told me about their stay with [the Mai Mai].
They were raped all the time. Some were held in huts so that they could not
flee. The four that came back have health problems.[45]

Asked how she knew the attackers were Mai Mai, Sophie M.
explained that they were wearing animal skins rather than uniforms, which is
typical for Mai Mai. After the rape, she was bleeding heavily due to an
internal injury. She was taken to a medical center in Bukavu where she received
treatment. While her health has now improved, and she has tested negative for
HIV/AIDS, her marriage seems destroyed:

My husband does not want to live together any more
because I had sex with Mai Mai. The perpetrators must be punished. The leader
of the Mai Mai can be identified and should also be punished.[46]

Mai Mai groups are also active throughout North
Kivu. Christine D. was
abducted during combat between two competing groups around Pinga in January
2003:

They took me by force because I was alone. My mother had
fled in another direction. There were three: one raped me and the others were
with him. I stayed with them for a long time in the forest, one year. I became
pregnant and lost the baby. I became pregnant again, so I fled here. There was
another girl with me, from a different family, who was also raped by the same
man. Four months along in her pregnancy she died; there was no medical care.
Every time we tried to run away, we were beaten.[47]

Christine D. knew the name of her attacker, and said she
would like to see him arrested."But it
would be hard to catch him because he's hidden in the forest," she said.

In mid-2003, Mai Mai combatants, just defeated by RCD-ML
forces, raped women and girls and looted and destroyed property as they
abandoned villages to the advancing RCD-ML forces. According to an inquiry done
by the human rights group CEJA, six of their victims were raped in Vuyinga,
about sixty miles west of Butembo, between July 8 and July 10, 2003.[48]

As part of the process of creating a new national army,
rebel forces and armed groups have been cantoned in a number of areas where
they are to be either retrained or demobilized. According to local women's
groups, Mai Mai combatants quartered at Mangango camp, some ten miles outside Beni, committed at least sixteen rapes in the immediate
vicinity of the camp during the first nine months they were based there.[49]

Sexual violence by Lendu armed groups and their
allies in Ituri

According to local human rights advocates and medical staff
in Ituri, widespread rape of women and girls has become frequent with the
growth of armed groups in the region. Human Rights Watch has documented
widespread acts of sexual violence committed by Lendu armed groups and their
allies, in particular Ngiti armed groups.[50]
According to one representative of a women's group:

[Lendu combatants] come to houses at night and rape the
women, sometimes in front of their husband. Sometimes they stop women as they
go to fetch water or go to the fields. They also stop girls coming back from
school. When they rape them in their houses, they steal as well.[51]

A medical professional in Ituri told a Human Rights Watch
researcher that more than 650 women were raped between the end of 2002 and
January 2004. He described one early 2004 case in which twelve FNI combatants
attacked two women of another ethnic group and raped them and then further injured
them by inserting sticks into their vaginas.[52]

Because of lack of money to pay the costs or because of fear
of being known as a rape victim, many women and girls fail to get the necessary
medical treatment. One girl, Claudine N., seventeen years old, was raped in
January 2004 and became pregnant. Afraid the rape would become public
knowledge, she tried to abort the pregnancy by taking traditional medicines.
She became ill and went to a health center ten miles away, where she was not
known. But it was too late and she died.[53]

In a few cases FNI leaders have punished combatants accused
of rape. FNI President Floribert Njabu told a Human Rights Watch researcher
that four FNI fighters were arrested in Kpandruma in early 2004. Although there
was apparently neither formal investigation nor trial, two of the accused were
executed and the two others imprisoned."We kill people who rape," said Njabu."If we arrest them and do nothing then people will say we let them go
and did not punish them."[54]President Njabu seemed unconcerned about the
illegality of summary executions, saying "Congolese law does not apply here.
This is the Republic
of Ituri."[55]

Attacks by the UPC in Ituri

Hema UPC combatants have been guilty of widespread rape of
women and girls in Bunia and other parts of Ituri.In the one month of May 2003, for example,
when the UPC sought to re-establish control over Bunia and outlying areas, 125
women and girls were raped.[56]
Twenty-five year old Ccile W. said,

In May 2003 UPC combatants entered my house at 9:00 p.m. one night. There were four
of them and I was alone in the house.They all took turns raping me. They told me not to shout and said they
would kill me if I did.They looted everything
from my house. As one was raping me the others would be going through the house
taking what they wanted. It was dark and I couldn't see their faces. I didn't
dare to tell anyone. I was scared so I fled the next day and went away from
that place. I now suffer from problems each month when I menstruate. I was treated
by MSF [Mdicins Sans Frontires] but they cannot cure me. They said they have
done everything they can but I still suffer.[57]

Brigitte K., a frail fifteen-year-old girl told a Human
Rights Watch researcher that she was raped in May 2003. She said,

I was sent by my family to get an axe in town.When I was coming back I met a group of UPC
combatants in Mudzipela near the Radio Candip station.One of them took me by force into a nearby
house.The people who were in the house
ran out as soon as they saw him.He tore
my clothes off and then he raped me.It
was my first time.He told me he would
shoot me if I shouted.I went home and
told my mother.She took me with her to
the military camp and I recognized the man who had raped me, but he fled.The officer told my mother he would give her
some money to take me to hospital but he never did.I suffered from headaches after this and I
feel a constant pain in my stomach.[58]

The combatant identified by the girl was not arrested, nor
has this or other cases of alleged rape by UPC combatants been investigated.

Male
rape

Men and boys in increasing numbers are also reporting having
been raped and otherwise sexually assaulted by combatants; however there are no
figures available. Some have sought help from centers that assist victims of
sexual violence, such as the medical program run by Mdicins Sans Frontires in
Baraka, South Kivu.[59]
Few victims give detailed statements about attacks they have suffered. But
Charles B., a man from Ituri told a Human Rights Watch researcher:

I was arrested on August 31, 2002 in Bunia along with my father. The UPC
arrested us as they thought we were against them because of our ethnicity.I did not understand it as I had done nothing
wrong. I spent one month and ten days in prison. When they first arrested us
they interrogated us, sometimes every two days. We stood nude in front of UPC
officials; one of them was Rafiki Saba [UPC Chief of Security]. I was so
shocked. I had never seen my father this way. In our culture, it is not right.
First they molested us then they raped us. Even today I cannot really talk
about this.It is too awful.After the interrogations we were sent to
different prison areas.To this day I
don't know what happened to my father, whether he is dead or alive.I am still traumatized by what happened to me
and I have a lot of health problems.[60]

The UPC combatants later took Charles B. and some twenty
other prisoners out in a van. They stopped the van at intervals and each time
removed several prisoners and shot them. The victim was one of the last group.
Those with him were shot but he was saved when one of the executioners
recognized him.[61]

With the increase in victims who are men or boys, local NGOs
and international agencies will need to find ways to offer medical,
psychological, and legal assistance that address the specific needs of male
victims.

The Legal Framework for Prosecution

The Congolese justice system has to date failed to address
the egregious problem of sexual violence in the country.In Congo, military courts
(court-martials) have jurisdiction over all criminal offenses perpetrated by
members of the national armed forces.Members of local armed groups that are not integrated into the national
army fall under the jurisdiction of the civilian courts.Prosecutions of sexual violence in both
military and civilian courts in Congo
are hindered by outdated laws, the widespread impunity of combatants from
justice, a refusal to recognize the serious nature of sexual offenses and
insufficient attention to the needs of the victims.

International humanitarian law

The armed conflict in Congo has both an internal and an
international dimension.[62]
International humanitarian law, also known as the laws of war, sets out
protections for civilians and captured combatants during both types of
conflicts.The four Geneva Conventions
of 1949 and its Additional Protocols implicitly and explicitly condemn rape and
other forms of sexual violence as serious violations of humanitarian law.[63] In
international armed conflicts that is, conflicts between two or more states
such crimes are grave breaches of the Geneva Conventions and are considered war
crimes. Violations involving direct attacks on civilians during internal armed
conflicts are increasingly recognized as war crimes.

The Fourth Geneva Convention on the protection of civilians
in international armed conflicts also provides a basis for defining the
protections during an internal armed conflict.Article 27 on the treatment of protected persons states that "women
shall be especially protected against any attack on their honor, in particular
against rape, enforced prostitution, or any form of indecent assault."[64] Article
147 specifies that "torture or inhuman treatment" and "willfully
causing great suffering or serious injury to body or health" are grave
breaches of the conventions.[65] The
International Committee of the Red Cross (ICRC) considers rape and other forms
of sexual violence to be grave breaches, and even a single act of sexual
violence can constitute a war crime.[66]

Situations of armed conflict internal to a state are
regulated by Article 3 common to the four Geneva Conventions and by the Second Protocol Additional to the Geneva
Conventions (Protocol II). Common Article 3 and Protocol II apply to all
parties to the conflict, nongovernmental armed groups as well as government
forces. It prohibits attacks on those taking no active part in hostilities
including civilians. Among the acts prohibited are "(a) violence to life
and person, in particular murder of all kinds, mutilation, cruel treatment and
torture; (b) taking of hostages; (c) outrages upon personal dignity, in
particular humiliating and degrading treatment."[67]
Acts of sexual violence fall squarely within this definition as they can be considered
cruel treatment, torture, and outrages upon personal dignity.

Congo
has been a party to Protocol II since December 2002.Article 4 of Protocol II expressly forbids
"violence to life, health and physical or mental well-being of persons, in
particular murder as well as cruel treatment, such as torture, mutilation or
any form of corporal punishment" and "outrages upon personal dignity,
in particular humiliating and degrading treatment, rape and enforced
prostitution and any form of indecent assault" as well as "slavery
and the slave trade in all their forms."[68]
According to the ICRC Commentary, this provision "reaffirms and
supplements" Common Article 3 because it "became clear that it was necessary to
strengthen ... the protection of women ... who may also be the victims of rape,
enforced prostitution or indecent assault."[69]

As the above language highlights, crimes of sexual violence
under international humanitarian law have been mischaracterized as attacks
against the honor of women or an outrage on personal dignity, as opposed to
attacks on physical integrity. This approach diminishes the serious nature of
the crime and contributes to the widespread misperception of rape as an attack
on honor that is an "incidental" or "lesser" crime relative
to crimes such as torture or enslavement.[70]

Acts of sexual violence committed as part of a widespread or
systematic attack against civilians in Congo can be classified as crimes
against humanity and prosecuted as such. There is no single international
treaty that provides an authoritative definition of crimes against humanity,
but such crimes are generally considered to be serious and inhumane acts
committed as part of a widespread or systematic attack against the civilian
population, during peacetime or armed conflict, and that result from the
persecution of a specific group.[71]Both state and non-state actors can be held
accountable for crimes against humanity.

The Rome Statute of the ICC, which Congo ratified in April 2002,
specifies "rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization," or any other form of sexual violence of comparable
gravity as war crimes and crimes against humanity.[72]
An individual case of serious sexual violence can be prosecuted as a crime
against humanity if the prosecution can make the link between the single
violation and other violations of basic human rights or international
humanitarian law that have been committed as a widespread or systematic attack
against the civilian population.[73]

International human rights law

Congo
is party to international human rights instruments that provide safeguards for
women and girls at all times, including during armed conflict. These include
protection from rape as torture and other mistreatment; slavery and forced prostitution;
and discrimination based on sex. Armed groups, particularly those in control of
territory, have increasingly been under an obligation to respect international
human rights standards.[74]

The International Covenant on Civil and Political Rights (ICCPR)[75] and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention against Torture)[76]
prohibit torture and other cruel, inhuman or degrading treatment by officials
or persons acting in an official capacity. The Convention on the Rights of the
Child (CRC) provides for the right to freedom from torture, sexual exploitation
and abuse as well as liberty and security of person.[77]
Article 15 of Congo's
interim Constitution prohibits torture and cruel, inhuman and degrading
treatment.[78]

The United Nations Special Rapporteur on Torture has
recognized that rape can constitute torture: "[R]ape is a traumatic form
of torture for the victim."[79] The
International Criminal Tribunal for the former Yugoslavia in the Furundzija case
noted that "[i]n certain circumstances ... rape can amount to torture and
has been found by international judicial bodies to constitute a violation of
the norm prohibiting torture."[80]
The International Criminal Tribunal for Rwanda in the Akayesu case stated
that "Like torture, rape is used for such purposes as intimidation,
degradation, humiliation, discrimination, punishment, control or destruction of
a person. Like torture, rape is a violation of personal dignity, and rape in
fact constitutes torture when it is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity."[81]

Sexual violence generally violates women's rights to be free
from discrimination based on sex as provided for under the ICCPR.[82] Under
Article 1 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW),[83] the
definition of discrimination is considered to include "gender-based
violence precisely because gender-based violence has the effect or purpose of
impairing or nullifying the enjoyment by women of human rights" on a basis
of equality with men.[84] The CEDAW
Committee enumerated a wide range of obligations for states related to ending
sexual violence, including ensuring appropriate treatment for victims in the
justice system, counseling and support services, and medical and psychological
assistance to victims.[85] In a 1993
resolution, the U.N. General Assembly declared that prohibiting gender
discrimination includes eliminating gender-based violence and that states
"should pursue by all appropriate means and without delay a policy of
eliminating violence against women."[86]

The CRC also provides for freedom from discrimination on the
basis of gender (Article 2), and the right to enjoyment of the highest
attainable standard of health (Article 24). Under Article 39, states shall take
all appropriate measures to promote physical and psychological recovery and
social integration of a child victim of any form of neglect, exploitation, or
abuse; torture of any other form of cruel, inhuman or degrading treatment or
punishment; or armed conflicts. The CRC also calls upon states to provide
special protection and assistance to a child "temporarily or permanently
deprived of his or her family environment." A child's right to "such
measures of protection as are required by his status as a minor" is also
guaranteed by the ICCPR.[87]

Under both the ICCPR and CEDAW, slavery and forced
prostitution in times of armed conflict constitute a basic violation of the
right to liberty and security of person.[88]
Furthermore, slavery is prohibited under Article 8 of the ICCPR, which also
prohibits forced labor, and by the 1926 Slavery Convention.[89]
The right to freedom from slavery is also provided under article 18 of the Congo
interim Constitution.

The African Charter on Human and Peoples' Rights, to which
Congo is a party, guarantees the "elimination of every discrimination
against women ... and protection of the rights of the woman and the child"[90] as well
as the right to integrity of one's person, and the right to be free of
"[a]ll forms of exploitation and degradation ..., particularly slavery,
slave trade, torture, cruel, inhuman or degrading punishment and
treatment."[91]

Congolese
military justice

Until late 2002, the national government used the Military
Justice Code of 1972 to define and punish crimes committed by members of the
armed forces, including acts of sexual violence.[92]
Rebel movements aspiring to national control, such as the RCD-Goma, the MLC, and
the RCD-ML, also applied, at least in theory, the 1972 code to their forces.[93]When the government adopted a new Military
Justice Code and Military Criminal Code in November 2002, the rebel movements
continued to rely on the older code.[94]
Whatever the code in use, however, very few prosecutions for crimes of sexual
violence were undertaken against either the regular armed forces or rebel
groups.[95]

As a party to the 1949 Geneva Conventions and the Rome
Statute of the ICC, the Congolese government is obligated to ensure that its
criminal codes prosecute war crimes and crimes against humanity, including rape
and sexual violence, in accordance with the treaty provisions.[96]

The 1972 Military Justice Code does not have a specific
provision on sexual violence, but it states that the Congolese Criminal Code is
also valid for members of the armed forces.

The Military Penal Code of 2002 does not have a basic
provision on sexual violence, but such crimes can be punished under the
Criminal Code, as discussed below.Provisions
on "violence or severe abuses" ("violences
ou svices graves") during war or a state of emergency (carrying the death
penalty) and "arbitrary acts and rights violations" ("actes arbitraires ou attentatoires aux droits et liberts") (up to
four years imprisonment) could conceivably be a basis for prosecuting
perpetrators of sexual violence.[97]
Article 173 on war crimes broadly states that a war crime is an offense
committed during wartime that is not in accordance with customs or laws.
Article 175 establishes the principle of command responsibility.

The Military Penal Code does include sexual violence in its
provision on crimes against humanity. Article 169 on crimes against humanity
states that acts of "rape, sexual slavery, forced prostitution, forced
pregnancy, forced sterilization, and other forms of sexual violence of
comparable gravity" constitute a crime against humanity if committed as part of
a generalized or systematic attack against the civilian population or "the
Republic".

The 2002 military code nonetheless remains incompatible with
the Rome Statute of the ICC and the Geneva Conventions, by failing to fully
incorporate their criminal provisions into Congo law. A proposed draft law
implementing the statute of the ICC would bring Congolese law into conformity
with these international instruments. It is currently being reviewed by the
Minister of Justice. If this law is passed, Congo will have made a significant
step towards a comprehensive definition of war crimes, crimes against humanity,
and genocide, consistent with the Rome Statute. The new legislation also
expands the jurisdiction of civilian tribunals to members of the armed forces
when they are accused of crimes against humanity or war crimes. This is of a
particular importance to assert the primacy of the civilian justice system and
create a coherent and unified jurisprudence.

The Congolese Criminal Code

During the armed conflict, Congolese criminal law and
Criminal Code were in force throughout the territory of the Congo.This included those areas controlled by rebel
groups or which were occupied by foreign troops.[98]

The Congolese Criminal Code which applies in both civilian
and military courts prohibits rape, defined as forcible sexual penetration of
a female, and indecent assault, defined as sexual assault without penetration.[99] Rape is
punishable by a prison sentence of five to twenty years, and indecent assault
is punishable by prison terms between six months and twenty years. Length of
punishment may depend on the age of the victim and whether violence, ruse, or
threats were used in committing the crime. Any sexual relations ("rapprochement charnel des sexes") with
a girl under the age of fourteen is statutory rape.[100]

Kidnapping or detaining a person using violence, ruse, or threat
is also punishable under the Congolese Criminal Code. If the victim is
subjected to physical torture, the punishment is five to twenty years. If the
torture leads to the death of the victim, the death sentence or a life prison
sentence are applicable.[101]

The criminal code does not specifically deal with acts of
sexual violence such as inserting objects into the vagina and rape within the
marriage. It also does not criminalize male rape. Finally, the law allows
considering information about the past conduct of the victim, such as "loose
morals," as attenuating circumstances in judging whether a criminal offense has
been committed.

The inadequacies of the rape law reflect traditional notions
of rape, especially the weak legal and social status of women in Congo.
This second-class status of women is reflected throughout Congolese law. For
instance, the Congolese Family Code defines the husband as the head of the
household and requires his wife to obey him. The women also has to move
wherever the husband chooses to live, and has to seek her husband's
authorization to go to court.[102] These
laws violate international standards of equality between women and men.

In Search of Justice for Rape and other Sexual Crimes

Very few of the tens of thousands of victims of sexual
violence in eastern Congo attempt to initiate judicial proceedings for the
crimes committed against them and even fewer-only a handful in recent
years-have actually seen perpetrators convicted and punished. Years of war and
the ensuing political disorganization, economic stagnation, and destruction of
infrastructure have considerably weakened the judicial system. In addition,
judicial authorities, virtually all of whom are men, rarely give priority to
crimes of sexual violence. The prosecutions of combatants that have taken place
have been marred by procedural faults, failure to seriously investigate command
responsibility for crimes, and insufficient attention to the needs of the
victim.

A presidential decree promulgated in April 2003 granted
amnesty to members of former rebel movements and armed groups for acts of war
and political offenses, but it appropriately excluded war crimes, crimes
against humanity and genocide from the amnesty. The amnesty therefore does not
protect perpetrators who committed crimes of sexual violence that would fall
under these categories.The parliament
has for some time considered passing an amnesty law, but to date has not done
so.Human Rights Watch opposes all
amnesties for serious war crimes, crimes against humanity and genocide.

Prosecution of sexual violence in Ituri

The Gbadolite trial

In October and November 2002 MLC forces committed widespread
crimes against civilians, including rapes and killings, during military
operations against the RCD-ML.[103] Known as
"Effacer le Tableau" (Erase the Blackboard), these operations were carried out
in Mambasa territory, Ituri district.In
November 2002, Jean-Pierre Bemba, the president of the MLC set up a military
court that was known as the Conseil de
guerre de garnison of Gbadolite (Bemba's headquarters) in Equateur
province. In February 2003 the court heard cases against twenty combatants, two
of them charged with rape, David Biaruhanga and Sergeant Andonisi Metele.
According to a MLC report issued February 26, 2003, the two were found guilty with David
Biaruhanga sentenced to one year and Andonisi Metele to ten months in prison.[104] The
tribunal concluded that Biaruhanga's being "drunk at the time of the commission
of the facts" was an attenuating circumstance.

The prosecution's investigation into the crimes was
superficial, which may have led to the short sentences. There was apparently no
investigation at the scene of the crime, some one thousand miles distant from
the place of the trial. Victims were not approached to see if they would
testify. Only fellow soldiers testified in these trials. Without an in-depth
investigation, the prosecutor also failed to examine seriously the culpability
of commanding officers for the numerous crimes. Colonel Freddy Ngalimo, who was
in direct command of the operations, was found guilty only of permitting
insubordination by forces under his control and was sentenced to three-years
imprisonment.[105]

Prosecution of rape by the new tribunal of Bunia

In an effort to show dramatic progress in attacking the
legacy of impunity and restarting judicial operations, Congolese authorities
re-opened the Tribunal de Grande Instance[106]
in Ituri in February 2004. The court had been closed since May 2003, unable to
function because of insecurity in the region. Backed by financial support from
the European Commission (E.C.), judicial authorities were able to issue more
than 150 indictments by September 2004.[107]
Rather than handing over cases involving combatants to a military tribunal, the
civilian court asserted its jurisdiction over such cases since the perpetrators
did not belong to recognized armed forces.[108]Prosecutors brought cases against some
important mid-level and senior-level leaders of local armed groups, thus
demonstrating a commitment to break with the impunity that had protected such
men in the past.[109]

From February to September 2004 the court handed down ten
judgments in cases of rape, and a further nine cases are currently under
investigation.Adults found guilty were sentenced to three to ten years imprisonment.[110] To Human
Rights Watch's knowledge, there has been no effort by responsible authorities
in Bunia to investigate whether superior officers have been complicit or
tolerated acts of sexual violence by forces under their command.

Of the ten persons convicted of crimes of sexual violence,
only three might be linked to an assault committed by an armed group. All were
convicted of having participated in a gang rape, involving ten perpetrators in
all, of two women near the Bunia airport on March 20, 2004. Two of the three convicted were
adults and were sentenced to four years imprisonment each. The third was a
minor of an unspecified age whose case was heard at the Juvenile Justice
Chamber (Chambre d'Enfance Dliquante), which
performs investigative and counseling functions rather than strictly criminal
proceedings. He was also found
guilty, was "reprimanded" and handed over to his family for "follow-up."[111]

Four other cases judged by the Ituri court dealt with acts
sexual violence committed by minors. In one case, the perpetrator was allegedly
nine or ten years old. All cases were tried at the Juvenile Justice Chamber (Chambre d'enfance dlinquante).

The re-opened court in Ituri has produced more convictions
on charges of crimes of sexual violence than any other jurisdiction currently
operating in eastern Congo,
but given the scale of crimes of sexual violence committed by armed groups in
Ituri, it is disappointing to see how few prosecutions address this enormous
problem.

The
prosecution of an RCD-Goma soldier: precedent or human rights abuse?

On February
18, 2003, eight-year old Lisette K., was allegedly raped by a
RCD-Goma soldier as she was walking home from school near the town of Kabare, north of Bukavu, in South
Kivu.

According to Lisette K.'s testimony in court, the soldier
took her to a field, forced her to remove her clothes and then raped her. He
threatened to kill her if she resisted.[112]
Before leaving he gave her 40 Francs Congolais (about $0.10). When the girl
came home she was deeply disturbed and refused to eat. She also did not want to
sit down, presumably from the pain. Her mother asked what had happened and the
girl told her. The next morning the girl's father informed a local official and
together they went to the local military commander who claimed that such a
thing could not happen.[113] But he
did present several soldiers to the girl and she identified Djems Kakule
Kambale, age twenty, as the rapist.[114]
The local officialthen sent the girl
to a nearby hospital, where a doctor examined the injuries, including vaginal
tears and external wounds caused by thorns on which the girl had lain. On
February 20 the doctor certified that the girl had been raped.[115] The same
day, the military commander arrested Kakule Kambale and transferred him to the
military prosecutor at Bukavu. According to the report of the pre-trial
investigation, Kakule Kambale admitted his guilt under questioning and
apologized for what he had done.

A Catholic priest urged the family to prosecute the case and
put them in touch with Centre Olame, where staff in turn contacted Action for
Rights Education (AED), an organization which provides legal assistance for
victims of sexual violence. In addition to providing the lawyer for the victim,
AED, together with Centre Olame and other NGOs campaigning against sexual
violence in Bukavu, made the case publicly known. Probably as a result of this
public attention to the case, the governor's office pushed the military
prosecutor to act. The military prosecutor in South Kivu,
Colonel Gaston Shomari, had also been a prosecutor in civilian life and was
apparently very ready to take this case of sexual violence seriously.

During the trial, held on June 5, 2003, the defendant denied having raped
Lisette K. He said that he had had sexual relations with someone else, a
fourteen-year old girl. After the military prosecutor contested this claim,
citing the accused's confession, the court found Kakule Kambale guilty of
statutory rape under the Criminal Code which prohibits sexual contact with a
girl under the age of fourteen years old.[116]
The judgment also referred to the 1972 Military Justice Code, as the new 2002
Military Code had not been applied by the RCD-Goma in eastern Congo. The court sentenced Kakule
Kambale to five years in prison and a fine of $500. The military prosecutor
appealed the decision, asking for a more severe punishment. On June 14, 2003, the military
court sentenced Kakule Kambale to ten-years' imprisonment and $5,000 of damages
to the victim. He was also dismissed from the army.[117]

Local human rights and womens' organizations applauded the
military prosecutor and the lawyer for the victim (partie civile). The human rights organization Heirs of Justicesaw the case as a precedent in the
larger fight against sexual violence:

The particularity observed in this trial is that the lawyer
of the civil party[118] founded
his argument in national and international legal instruments that contain clear
prohibitions of sexual violence. This exemplary judgment starts, we hope, a
fight against the impunity that surrounds the problem, because several cases of
rape have reportedly been denounced but this is the only trial of this type.[119]

Local NGOs videotaped the trial. When they showed the tape
to a group of victims of sexual violence, they said "So justice is possible."
They were particularly impressed because the victim was a child and one from a
poor family. Several who saw the tape said they too would be ready to press
charges if they were given support in doing so.[120]
Some local observers were encouraged by the father having joined the complaint
as a civil party because they saw this as an example of victims taking control
of their own situation.[121]

Kakule Kambale, serving his term in prison in Bukavu,
escaped along with many other prisoners during the disorder caused by the
Mutebutsi-Nkunda uprising in June 2004.

Lack of due process: violating the rights of the
defendant

Hailed as a victory by many civil society organizations, the
trial of Kakule Kambale was marred by grave procedural faults that turned the
trial itself into a scene of right abuse.

In an interview after the trial with a Human Rights Watch
researcher, Kakule Kambale claimed he had not raped Lisette K. and did not even
know her. He said that he had had sexual relations with a fourteen-year-old
girl. Believing this was the charge, he admitted to it and believed that he
would be able to end the problem by marrying the girl. He claimed that his
relations with the fourteen-year-old had been consensual.[122]

The rights of the defendant were violated in a number of
ways. He did not have an opportunity to choose his own lawyer nor even to speak
with his counsel at length before the trial began. Of his two lawyers, he met
one the day before the trial, the other the day of the trial itself.[123] From
viewing the videotape, mentioned above, and interviews with two of the lawyers
involved, it is clear that there were other serious procedural flaws during the
proceedings.[124] The
court accepted the pre-trial report of the military prosecutor without
question. In many countries that use the civil law system, the conclusions of
the investigative magistrate are subject to review by another organ, such as
the chambre d'accusation, but in the Congo the same magistrate conducts
the investigation and carries on as the trial judge. The defense should
therefore be permitted to investigate fully and present the results of
investigation during the trial. In this case, the legal representatives for the
accused had no time to prepare a case in depth and all their attempts to call
witnesses - including two who were supposedly present at the time of the crime
- were rejected by the court at the request of the prosecutor. The court also
refused to question Kakule Kambale about the circumstances of his arrest and
the interrogation at which he was said to have confessed to the crime.[125] As a
result the defense was unable to challenge the prosecutor's contention that
Kakule Kabale had confessed to having raped Lisette K. rather than to having
had sexual relations with another girl.

The victim, scared and stigmatized

Lisette K. came out of the trial further traumatized by
having had to face a crowded and noisy courtroom and many cameras.[126] In part
because the trial was hastily announced with little notice, in part because
there were no local counselors available to help prepare her for giving
testimony, the young child was bewildered and frightened by the experience.[127] No one
from the judicial system made any effort to understand the psychological
situation of the child or to provide support to her and her family. Lisette K.,
who at first believed that the soldier was going to be executed because he had
done something bad, was still afraid of any man in uniform months later.
According to her father, "If she so much as sees a soldier, she wants to run
away."[128] Asked to
come to town six months later to talk about the case, the girl started to cry
and refused to go. In comments to a Human Rights Watch researcher, her father
indicated that he too failed to understand the depth of his daughter's trauma
and to see how to help her. The family had also suffered the burden of medical
expenses for Lisette K.'s care, expenses they had originally told would be paid
for them.[129]

Other
convictions for
crimes of sexual violence in areas held by RCD-Goma

On August
29, 2002, thirteen-year-old Violette J. was assaulted and raped by
an RCD-Goma soldier on the outskirts of Bukavu town. The girl told her mother
and was taken to the hospital, where a doctor examined her and certified that
she had been raped. Several days later the family filed a complaint at the
office of the military prosecutor.[130]
The alleged perpetrator was arrested and brought to trial soon after.[131]
On November 27, 2002,
the conseil de guerre (court martial) found him guilty of rape and
sentenced him to five years imprisonment. A soldier who had accompanied the
rapist and had driven away the victim's brother was acquitted. According to the
military prosecutor, the convicted perpetrator, like Kakule Kambale, escaped
from prison in June 2004.[132]

According to Violette's mother, the girl remained
traumatized and was obliged to change schools because of public attention
concerning the rape. She also contracted a sexually transmitted disease,
although she was not infected by HIV.[133]

Human Rights Watch researchers were able to document one
case of a member of the Local Defense Force tried for a rape committed in Goma.
Although supposedly a civilian and not actually a member of the armed forces,
the accused was tried by the military court, the conseil de guerre. He was found guilty and sentenced
totwenty years in
prison.[134]

The Obstacles to Prosecution

Most perpetrators of crimes of sexual violence go
unpunished, often because victims do not file charges against them. Victims
keep silent for many reasons:

Often
the victims are not able to identify the perpetrators or know where to
find them. This is especially true when perpetrators are Mai Mai or
Rwandan Hutu combatants.

They
fear retribution or have been specifically threatened with harm if they
seek to have the assailant prosecuted.

They
do not know about the possibility of going to court, or they feel justice
is for others, not for them.

They
feel ashamed or guilty and fear being stigmatized by others in the
community.

Government officials in eastern Congo frequently argue that
inaction by victims is an important obstacle to prosecution of crimes of sexual
violence. In October 2003, the military prosecutor of North
Kivu said that in three-quarters of all cases, victims do not
bring charges against those guilty of crimes of sexual violence. He concluded,
"When you don't have the information you can't send a file to court."[136]
The prosecutor of the court in Ituri also explained the small number of rape
convictions as partly due to the reluctance of victims to report the rape.[137]

Judicial authorities have an obligation to investigate
crimes once they learn of them, regardless of whether the victim files a
complaint or not. They also have an obligation to create conditions conducive
to victims filing charges. This includes ensuring that investigations and
prosecutions are executed with due diligence in order to maximize the
possibility of the guilty being convicted.

Against all odds: victims want justice

While the majority of victims do not consider taking their
case to court, more and more victims are eager to do so. According to a
counselor working with victims of sexual violence:

Many women I speak to want to take their case to justice.
They say, "I wish he would be punished today." When you explain to them that
they can conceal their identity in court, they say: "I have nothing to lose. I
am ready to stand in court and say openly what happened."[138]

Victims have gathered to learn about seeking justice from
women who have done so, from human rights activists, or by a videotape of the
trial mentioned above. In many cases they have gone away determined to take
action themselves.[139] After
such an occasion in September 2004 in Sange, South Kivu, representatives of a
human rights NGO heard from four women the week after seeking help, from
thirteen more the week after that, and from twenty-three in the third week. As
a representative from the NGO concluded, "There is a will to go to justice."[140]

The statistics bear out the anecdotal information: according
to one NGO, twelve cases of sexual violence were brought in Goma courts in 2002
and twenty-six in 2003.[141] Another
NGO documented thirty cases before the civilian and military courts in Goma in
the first half of 2004; another thirty-one cases were being investigated by the
prosecutor of the Tribunal de Grande Instance.[142]

In many instances it was easier for parents to file
complaints involving crimes against their children than it was for adult
victims to do so. Often a woman who has been raped is seen as someone who has
brought shame on her community but young children are not subject to the same
stigma. Communities often act together in speaking out against sexual violence
committed against children.

Officials fail to deliver justice

Women and girls who seek justice must have at least the
cooperation, if not the support, of authorities. As the cases below show, some
victims who wanted their assailants prosecuted got neither. Although in some of
these cases authorities were open to receiving complaints, in every case but
one the effort failed because others with power or official position obstructed
the effort to bring those responsible to justice.

In April 2003, Simone B., a young woman working with a
humanitarian agency in a refugee camp south of Bukavu, was sexually assaulted
by two RCD-Goma soldiers. They followed her, grabbed her and forced her to the
ground. As they started to pull off her clothes, she screamed. When others came
to help her, the two fled. The victim filed a complaint with the military
prosecutor. A cooperative local military commander tried to find the men, whose
names were known. But the suspects were never arrested and, according to local
observers, the victim had to leave the area after being threatened by other
RCD-Goma soldiers.[143]

On June 28, 2003, two RCD-Goma soldiers came to the house of
twelve-year-old Rosette T. and her companion Elise K., another twelve-year-old
near Kalonge, north of Bukavu. They took chicken and guinea pigs and forced the
girls to carry the loot. At a river, where they stopped for water, the soldiers
raped the girls. They then forced them to wash their clothes.Parents of the girls complained to the
commander at the Cihimba RCD-Goma military camp. He promptly presented a
line-up of his combatants and the girls were able to identify one of the
suspects, but did not see the other. The suspect denied everything; the
commander ordered him to be beaten but did not arrest him. The girls went to a
medical clinic in Bukavu, where a doctor confirmed that they had been raped.
While in town, the girls saw the other suspect. The parents, backed by local
NGOs, pushed for a prosecution, but the military prosecutor, citing logistical
and security reasons, never went to Kalonge to investigate the crime or to
arrest the suspects.[144]

Marianne L. was raped and shot by an RCD-Goma soldier in
August 2003, as described above.[145]
Local people who had heard of the crime stopped the suspect as he was trying to
flee to Bukavu and brought him back to the military camp. The commander
interrogated him and the suspect confessed to the crimes.[146] But he
was not arrested at that time, apparently because he was protected by his
superiors. It took pressure from the military prosecutor and advocacy by
local NGOs to get the suspect arrested two months later. He escaped with
others during the attack on Bukavu in June 2004 and has not been tried.[147]

On July 5,
2003, Laure N., on her way home from market, was raped by a local commander
of the Local Defense Forces on the outskirts of Goma. Her father complained to
a local official and the superior of the suspect had him detained at the
communal offices. According to a local NGO that investigated the case, the
suspect confessed to the crime. However, the mayor, who has the powers of a
judicial investigating officer as well as of senior administrative authority in
the commune, released the suspect, ended the investigation, and turned down
requests for a meeting with the victim's family. The family of the victim,
threatened by members of Local Defense Force, left the neighborhood.[148]

The above-mentioned case of Marie T.,[149]
the dressmaking student raped by several Local Defense Forces in August 2003,
is another example of civilian authorities blocking prosecutions. Although
Marie could not identify the perpetrators by face, she had heard the name of
one of them. Her family asked local authorities and police to find the LDF
posted to the neighborhood on the day of the attack.But authorities insisted there were no Local
Defense Forces assigned to patrol that neighborhood, and so the family felt
compelled to let the case drop.[150]

On January
27, 2004, Francine G. went to find her fifteen-year-old son who had
been jailed for not having done obligatory community labor in Rutshuru, North Kivu. She herself was then arrested and that night
she was raped by a police officer in the jail.[151]The police officer was arrested and
transferred to the custody of the military prosecutor in Goma, where a year
later he was still detained without having been tried.[152]

In the single example of a prosecution leading to a
conviction among these cases, the readiness of MONUC officers to intervene may
have been an important factor. In mid-2004 in Bunia the grandmother of a young
girl, four-year-old Nadine L., came back from the field to find her
granddaughter being raped by an adult male neighbor. According to local
sources, she reported the matter to the chief but nothing happened. A local
woman's group was informed of the incident and through the assistance of MONUC
helped the grandmother to report the matter to the police who subsequently
arrested the alleged perpetrator.[153]Shortly after the arrest the grandmother was
threatened by armed combatants, reportedly family members of the accused, who
arrived at her house with guns. She was forced to flee with Nadine L. to
another part of town where she felt safer; no police protection was provided to
her.Despite these difficulties the case
was brought before the court on June
17, 2004, and the perpetrator convicted on July 29, 2004, with a sentence of ten
years of imprisonment.[154] The
young victim was asked to come to the court to identify her rapist. A woman who
knows Nadine L. says, "Today she really suffers from trauma. She cannot
remember the simplest things and although she is a little girl, she speaks like
an adult."[155]

As discussed below, prosecuting soldiers and other
combatants implicated for crimes in Congo is extremely difficult.These difficulties are multiplied in cases
involving sexual violence. Commanding officers often arranged for
combatantsaccused of sexual violence to
be quickly transferred elsewhere, making prosecution far more difficult and
often impossible. In a meeting with
NGOs, international agencies and victims on sexual violence, the military
prosecutor of North Kivu said:

There is
impunity on the front. When there is a case of rape, it often takes
organizations time to respond. It takes time for a case [of rape] to
arrive here. We lose track of the soldiers We know the problem of transfers
[of suspects] in Kindu, Kisangani,
Bukavu.[156]

Reluctance to prosecute accused soldiers also hampers
prosecution in areas controlled by the former rebel movements. When RCD-ML
fighters committed a series of acts of sexual violence and other crimes against
civilians in Musienene in June 2003, for example, RCD-ML leaders did not
prosecute anyone, despite complaints by some families of victims.[157] The
reluctance to arrest fellow soldiers or to investigate them thoroughly
continues into the trial process as well. Few of the cases that reach military
court end in conviction, in part because those prosecuting are from the same
institution as the accused.

The lack of protection

Persons seeking justice are often threatened and sometimes
drop their cases as a result, as illustrated above. In order to increase the
number of complaints brought and followed to a successful conclusion,
authorities must provide protection for victims and witnesses. According to
Article 23 of the interim Constitution currently in force, courts can sit in
closed session if necessary to protect public order and good morals (ordre public et bonnes moeurs), but
there are no other provisions specifically providing for taking closed-court
testimony from witnesses or victims who fear reprisals. Nor are there any
regulations or agencies dedicated to providing for the safety of those who are
threatened with harm if they testify. According to a representative of one NGO
in Bunia, her organization had assisted over 2,000 victims of rape and the vast
majority of them would agree to appear in court only if their identity is
shielded from the public.[158] One
woman in Bunia who was considering seeking justice for crimes against her asked
a Human Rights Watch researcher:

Who will protect me if I say who it was who raped me? The
men with guns still rule here.The U.N.
only protect a small part of town and they will not help me if these men come
to my door.[159]

General problems with
the judicial system

Persons seeking justice for crimes of sexual violence face
many of the same problems faced by all citizens seeking to bring complaints for
crimes committed.Corruption is
widespread in the justice sector, and it is common practice to bribe judges or
other judicial officials to influence the outcome of an investigation or a
trial. Because of the years of war and economic stagnation, the judicial system
suffers from the logistical and financial problems that trouble other sectors
of government.

Lack
of qualified staff, logistical support and efficient organization

Most persons staffing military and civilian courts are
poorly trained. Investigators often do not know how to gather the facts so they
can be used in court, including in cases of crimes of sexual violence. There
are no forensic specialists in eastern Congo nor do prosecutorial or
judicial staff have training in dealing with severely traumatized victims of
sexual violence. Most judicial staff are male. The military prosecutor in
Bukavu recently hired some female investigating officers, which might be a step
forward; however, the hiring of female staff as such is no guarantee for
improved quality of investigations.

Military and civilian prosecutors in eastern Congo
lack vehicles and money to pay for travel to outlying areas to conduct proper
investigations. Courts and prosecutors also lack basic material such as
stationery, let alone computers.

Some recent cases from Walungu, South
Kivu, illustrate these problems. Several RCD-Goma soldiers were
accused of rape. The victims contacted the military commander in place and
urged him to take action. But investigators working on the cases were so poorly
trained that they submitted reports lacking some essential information, such as
the names of the victims.The military
prosecutor in Bukavu, better able to manage an investigation, had no money to
pay for transport to Walungu. When investigators from Bukavu finally reached
the scene, they failed to find the original investigators and so could not
locate the victims. As a result, several suspects had to be released for lack
of evidence against them.

In another case in April 2004, the rape of an eight-year-old
girl in Kanyola in Walungu was reported to the military prosecutor. According
to the Military Prosecutor, the victim recognized the perpetrator. However,
four months later, the Military Prosecutor's Office had still not begun its
investigation, in part because transport to this area is difficult to organize.[160]

Obstacles linked to the transition process

Shortly after the transitional government was established in
June 2003, it suspended the operations of courts set up under the 1972 Military
Justice Code in order to clear the way for courts operating under the code
adopted in 2002.However very little has been done to set up the new military
courts, install judges, and start the work. A national Military Prosecutor (Auditeur Gnral) was finally
named in late June 2004. By September 2004, more than a year after the start of
the transition, judicial staff magistrates and judges had been named for
the military courts but had not taken up their posts. This delay has blocked
investigations and prosecutions of crimes allegedly committed by RCD-Goma
fighters and combatants of other armed groups. In some cases, suspects end up
in prolonged military detention without trial a violation of their rights. In
North Kivu, for example, the military
prosecutor detained at least twelve men on charges of rape between November
2003 and June 2004 but none had been tried, and some remain in detention. In
other cases suspects simply went free.[161]
A lawyer from Bukavu said:

This state of things paralyses and blocks the prosecution
of sexual violence... This situation gives the victims the impression of
impunity [for the perpetrators] and this traumatizes them even further.[162]

The way forward

An important step towards promoting prosecution of crimes of
sexual violence would be the government's creation of a legal framework for
implementing for the Rome Statute of ICC. The draft implementing law prepared
by an expert commission in October 2002 contains a comprehensive definition of
crimes of sexual violence as war crimes and crimes against humanity. Further
legal changes are needed to protect victims and others who agree to testify
against possible reprisals, particularly from men with guns-soldiers and
members of armed groups. An amendment to Criminal Code should make it possible
for a victim to file for specific protective measures with the prosecutor or
the president of the tribunal, including having her identity protected and
receiving police protection before, during, and after the trial.

In addition to legal changes, authorities must provide
training for investigators, including specialized training on investigating
crimes of sexual violence and on dealing with traumatized persons. The number
of female personnel among judges, magistrates, and investigating officers (Officiers
de police judiciaire) should be increased.[163]The police and the courts have a duty to inform victims and their families
about the functioning of the criminal justice system, and to accompany them
throughout the judicial proceedings, preferably by assigning one contact person
who regularly reviews the victim's judicial progress. If possible they should
also employ forensic medical experts and provide trauma counseling for victims
who testify about sexual violence.

Finally, the judiciary and prosecution need to be
strengthened with sufficient resources to properly carry out their functions.
In particular, court officials must be able to travel to remote areas to
investigate and prosecute cases, or even hold trials in remote rural locations.

Help for the Victims

The destructive impact of sexual violence on individuals as
well as on society as a whole is overwhelming. In the last few years, local
organizations have drawn attention to the extent of the crisis in eastern Congo
and have been the first to offer help to victims. Congolese civil society is
vibrant and has long been a major support to affected populations in eastern Congo.
With the war and the erosion of official services, these groups have often
offered the only help available to those in need, including to those who had
suffered crimes of sexual violence.

Medical emergency

Women and girls who have suffered crimes of sexual violence
must have their medical and psychological needs met both to relieve their
immediate distress and to give them strength to pursue judicial redress. A
person who is in pain, is incontinent, or depressed is unlikely to take a case
to court.

Women and girls who have been victims of sexual violence
suffer from fistulas and other injuries as well as from infections and sexually
transmitted diseases, including HIV/AIDS. Some get pregnant and suffer from
rape-related complications during the pregnancy or birth. Abortion is illegal
in Congo.[164] Some
victims have attempted to get abortions and suffered complications from these
unsafe procedures.

The prevalence of HIV/AIDS in Congo is unknown, but it is likely
that many women and girls raped by soldiers and combatants have contracted
HIV/AIDS.The prevalence of the
infection among combatants is generally above the average infection rate of the
Congolese population, and violent assault increases the risk of infection
through tears and injuries to genital tissue. UNAIDS estimates that the
nationwide prevalence rate is at about 4.2 percent, but the National Program to
Combat AIDS (Programme nationale de lutte contre le SIDA) estimates the prevalence in eastern Congo to be much higher, between 20
and 22 percent.[165]

Most victims of sexual violence have no medical examination
or treatment after their assault. They live in rural areas where medical
services are not available, they lack money for treatment and even to pay for
transport to a clinic, or they fear that a medical visit will make the rape
publicly known. Already before the war, the Congolese health system was in a
dilapidated state and during the war, many health centers and hospitals were
looted and destroyed. In places where buildings are still standing, staff to
deliver services or needed drugs and equipment are in short supply or even
lacking altogether. Centers to test and treat HIV/AIDS are especially needed
and there are few of them, mostly located in urban centers. Only one program in
eastern Congo,
based in Bukavu, provides anti-retrovirals to HIV/AIDS infected persons and it
treated only 127 patients by October 2004.[166]
Post-exposure prophylaxis drugs a course of drugs that can prevent HIV
infection if taken within 72 hours after the rape and drugs preventing
mother-to-child transmission of HIV are also not widely available.
Church-related health agencies offer some limited medical aid in rural areas
and some local NGOs such as Solidarity for Social Support and Peace (SOPROP),
PAIF and Centre Mater Misericordiae provide primary care in Goma, Kitshanga,
Butembo, Katana, and Bukavu.

Given the widespread reports of sexual violence and the
devastating consequences of becoming infected with HIV/AIDS as a result of
sexual violence, medical clinics should screen for sexual violence, routinely
provide information to all patients regarding transmission, voluntary testing
and counseling, and treatment for HIV/AIDS.

Psychological and social rehabilitation

Beyond the physical consequences of the crimes, women, girls
and their communities have to deal with the psychological and social effect.
Many victims of sexual violence are depressed, suffer from psychosomatic
illnesses or even commit suicide. If the rape resulted in pregnancy, most women
and girls have given birth to the babies, in part because abortion is not just
illegal but seen by many as immoral. Mothers of these children struggle to find
ways of living with these children born out of rape, and they and their
children are often rejected by their families. Consequences of such rejection
are serious since families in the Congo are often the only safety net
for assuring protection and survival to the vulnerable.

By mid-2004 there was a wide range of organizations in
eastern Congo
providing psychological counseling, practical assistance such as vocational
training or micro-credit programs, and general support in overcoming the stigma
and isolation connected to having been a victim of sexual violence. But
widespread rape has torn apart individual lives as well as communities and the
help offered thus far falls short of meeting the need.

Legal assistance

Several local NGOs have sought to offer legal help to
victims seeking justice. A relatively recent development, the provision of
these services may well grow as increasing numbers of victims seek legal
redress. In South Kivu, AED and Congolese Initiative for Justice and Peace
(Initiative Congolaise pour la Justice et la Paix, ICJP) provide legal advice
and assistance to women and girls who are victims of sexual violence while in
North Kivu, SAJ in Goma, and CEJA in Butembo provide legal assistance to these
victims.

Since the transitional government entered office, it has
taken only very limited steps to dealing with the problem of sexual violence.
It delegated representatives to participate in a U.N.-led mission to assess the
problem of sexual violence in eastern Congo and it announced that the
national Social Fund would pay for urgent medical assistance to victims of
sexual violence.[167] Efforts
being undertaken to make the military and civilian justice systems operate
efficiently will, of course, facilitate prosecution of perpetrators of crimes
of sexual violence.

International Response

With growing press and public attention to the crisis of
sexual violence in eastern Congo,
international leaders and various agencies are beginning to understand the
scale of the problem. One important step to ending crimes of sexual violence by
armed forces would be to reform the army and enable the military hierarchy to
better discipline soldiers. Reluctant to become directly involved in such
efforts, international leaders have focused on providing assistance to
victims.Such assistance increased in
2004 but was still far less than what is needed.

Medical assistance

Following the 2003 U.N. assessment mentioned above, U.N.
agencies identified work on sexual violence as one of four priority areas for
the 2004 Consolidated Appeal Process (CAP) for the Congo. Meant to raise a total of
US$ 187 million, it had received pledges of about half that amount by October
2004.[168] In March
2004, the World Bank granted US$102 million to combat HIV/AIDS in Congo and the Global Fund has dedicated $35
million to AIDS care over the next two years in Congo.[169]
Some of these funds will necessarily assist women who have contracted HIV/AIDS
as a result of having been raped.

By mid-2004 several international agencies were providing
help for the medical, psychological, social and legal rehabilitation of the
victims in eastern Congo, but
most were based in North and South Kivu with
far fewer working in Ituri. UNICEF supported Panzi hospital in Bukavu with two
gynecologists on staff; the international NGO Doctors on Call for Service
(DOCS) ran a clinic treating victims of sexual violence in Goma; the
International Rescue Committee (IRC) funded several clinics that provide
medical care, including for victims of sexual violence; Aide Mdicale
Internationale (AMI) helps victims of sexual violence in Uvira and Mdicins
Sans Frontires offers similar help in Shabunda. The German development agency
Gesellschaft fr Technische Zusammenarbeit (GTZ) carries out a program of
community counseling in South Kivu, helping
communities to address the issue of sexual violence and reintegrate victims.

Given the enormity of the task at hand, this can only be a
starting point. Tens of thousands of women and girl victims remain in acute
medical need. Despite the important efforts by individual agencies, the
international response to the mass rape of eastern Congo has been devastatingly slow.

Legal assistance and reform of the justice
sector

Faced with the enormity of trying to make the justice system
function, key donors came together under the leadership of the European
Commission to develop a coordinated strategy of assistance. A group of experts
tasked with assessing the problem reported to the E.C. in May 2004. They went
beyond providing advice on how to organize and rebuild the judiciary, and made
recommendations on impunity, how to deal with violations of international
humanitarian law, and transitional justice. They called for the adoption of the
ICC implementing legislation and for modifications in the Criminal Code
provisions concerning crimes of sexual violence and other international crimes.
The experts also recommended changing the family code to give women full legal
capacity and recommended that judicial personnel be trained in how to
investigate violations of international humanitarian law. The report is meant
to become a basis for donor funding.

As mentioned above, the E.C. funded efforts to restore the
judicial system in Bunia, Ituri district, was a generally successful program
that may serve as a model for restoring judicial operations elsewhere in the
country.

International justice: the ICC investigation
in Congo

On June 23, 2004, the ICC Prosecutor announced that his
office was beginning an investigation into violations of international
humanitarian law committed in the Congo. The first investigation
undertaken by the ICC, this was triggered by a Congolese government request.
The prosecutor's office can investigate crimes where national courts are unable
or unwilling to do so, and its authority can be triggered by a formal request
from the state involved. The prosecutor's office has startedits
investigations in the conflict-ridden Ituri region, but has made clear that
crimes in other parts of Congo
might also be investigated.

Given the scale of crimes of sexual violence in the Congo,
it will be important for the ICC to investigate and prosecute crimes of this
nature. Such investigation will need to focus on those bearing the greatest
responsibility within the armed groups as well as those backing them, including
actors outside Congo's
borders.

Human rights monitoring and civilian protection
by MONUC

MONUC started out with a narrow technical mandate in Congo, focused on monitoring the compliance with
the Lusaka
peace agreement, and reporting on military activities by all sides. In July
2003, the U.N. Security Council broadened this mandate to include the
protection of civilians, a major task in the Congo conflict. This means that
MONUC troops can and should use force when necessary to protect civilians.
Unfortunately MONUC has not fully implemented this mandate; in many areas of
eastern Congo, civilians continue to be at the mercy of armed groups as before
and have failed to get the protection needed, as was the case with victims
raped and killed during the uprising led by Mutebutsi and Nkunda in June
2004.Nevertheless, in some instances MONUC
has indeed intervened in order to protect the civilian population, for example
in Bunia town, signaling to armed groups that their abusive behavior will no
longer be tolerated.

MONUC's role in monitoring human rights abuses and assisting
victims has also changed significantly over the past two years. At its
inception MONUC's civilian component was small, and human rights monitoring did
not take place systematically. However, more recently MONUC has managed to
place human rights monitors in many parts of the country, including areas that
are remote and the scene of grave abuses. MONUC has carried out investigations
into grave abuses promptly and, in some cases, published the results.
Increasingly, MONUC has also documented crimes of sexual violence and taken
steps to assist the victims in taking cases to court, as in the example
described above.

Such efforts are undermined when MONUC and other U.N. staff
themselves abuse and exploit women and girls in Congo. In interviews with victims,
Human Rights Watch has found that MONUC peacekeepers from different military
contingents as well as civilian staff have sexually exploited Congolese women
and girls who were in desperate need of food, money or other items.[170] In some
cases MONUC staff have also sexually assaulted or raped women and girls. The
U.N. reaction to this situation has been slow and inadequate. Information about
these abuses has been available within the U.N. since mid-2004, when an
internal investigation was conducted. It was only in January 2005 that these
abuses were vigorously condemned by the U.N. Secretary-General. Only a handful
of cases has been subject to an internal disciplinary procedure, and even fewer
cases have been tried in home countries of the suspects.

Annex:Who is who among the combatants in eastern Congo?

Armed Forces of the
Democratic Republic
of Congo (FARDC)

The new, nominally integrated Congolese army, formed from
the forces of the former Kabila government and several rebel movements that
signed the Pretoria Agreement in 2002.Despite allegations of war crimes and crimes against humanity, some
commanders from armed groups were granted senior ranks.

Congolese Armed
Forces (FAC)

Former Congolese government army during the Congo
war. It has now become part of the FARDC.

Congolese Rally for
Democracy Goma (RCD-G)

Leader: Azarias Ruberwa. Rwandan-backed rebel group which
makes up a major component of the transitional government in Kinshasa. Ruberwa was appointed as one of the
Congo's
four Vice Presidents in its new transitional government in June 2003. The
headquarters were in Goma, North Kivu.

Congolese Rally for
Democracy Kisangani
Liberation Movement (RCD-ML)

Leader: Mbusa Nyamwisi, now Minister of Regional
Cooperation. The RCD-ML was launched in 1999 as a breakaway faction of the
RCD-Goma. Backed at the start by Uganda, the RCD-ML has been
fractured by leadership struggles and infighting. Their headquarters were Kisangani, then Bunia, and are now in Beni.

Mai Mai

Local Congolese combatants who took up arms to fight against
what they saw as foreign occupation. They operate in many parts of eastern Congo
but did not have a centralized command structure. One of the key leaders,
Padiri, is now Head of the Military region of Orientale province.

Movement for the Liberation
of Congo
(MLC)

Leader: Jean-Pierre Bemba, now Vice-President. Based in
Gbadolite, the MLC has been backed by Uganda since the start of the war.
The MLC is now a powerful player in the transitional government.

Local Defense Forces
(LDF)

The Local Defense
Forces were created as auxiliary force of the RCD-G, and then operated
as a private militia of current North Kivu Governor Eugne Serufuli. The group
was officially dissolved in February 2004 but many its combatants seem to show
continued loyalty to Serufuli.

People's Armed Forces
of Congo
(FAPC)

Leader: Jrme Kakwavu. An Ituri armed group based in
northeastern Congo (Aru and
Ariwara), established in 2003 with the support of Uganda. Despite serious allegations
of war crimes carried out on the order of Jerome Kakwavu, he was integrated
into the FARDC as General in January 2005.

Union of Congolese Patriots (UPC)

The UPC is an armed group in Ituri promoting the interests
of the ethnic Hema. It took control of Bunia in August 2002 with the help of Uganda.
Soon after, it received support from Rwanda. In early 2004 the UPC split
into two factions under Kisembo (known as UPC-K) and Lubanga (known as UPC-L).

Democratic Liberation
Forces of Rwanda
(FDLR)

A Rwandan Hutu armed group based in Kivu. It has in its
ranks Rwandans dissatisfied with the current regime, former refugees, and
former members of the Rwandan army and individuals some of whom may have been
involved in the 1994 Rwandan genocide.

Forces for the
Defence of Democracy (FDD)

Leader: Pierre Nkurunziza. Formerly the largest Burundian
Hutu rebel group. They signed a ceasefire with the Burundian government in
December 2002. Nkurunziza is standing as a strong presidential candidate in the
upcoming elections. During the Congo
war, the FDD had bases in Congo,
and the government of Laurent-Dsir Kabila supported and supplied the FDD.

Acknowledgements

This report was researched and written by Juliane
Kippenberg, NGO Liaison in the Africa Division of Human Rights Watch.
Additional research was provided by Anneke van Woudenberg, Senior DRC
Researcher, Karen Stauss, DRC Researcher, and Pascal Kambale, Counsel in the
International Justice Program. The report was edited by Alison Des Forges,
Senior Advisor in the Africa Division. It was reviewed by Tony Tate, Africa
Researcher in the Children's Rights Division, LaShawn Jefferson, Director of
the Women's Rights Division, James Ross, Senior Legal Advisor, and Widney
Brown, Deputy Program Director. Lizzie Parsons and Andrea Holley provided production
assistance.

We would like to thank the victims who agreed to speak to us
about their experiences. We would also like to thank Congolese and
international non-governmental organizations that assisted us in the research
and shared their views. In particular we would like to thank those who
co-organized consultations on justice and sexual violence with us, namely La
Coalition contre les Violences Sexuelles, Initiative Congolaise pour la
Justice, et la Paix and Promotion et Appui aux Initiatives Fminines.

[1] In
this report, consistent with the Convention on the Rights of the Child, the
terms girl, boy and child are used to describe someone under eighteen years of
age.

[2]
The term "sexual violence" is used in this report to refer to all forms of
violence of a sexual nature, such as rape, attempted rape, sexual slavery,
enforced prostitution, sexual assault and sexual threat.

[3]
IRIN, DRC: Focus on rampant rape, despite end of war, March 8, 2004. The report found that
that there were about 25,000 victims in South Kivu province, 11,350 in Maniema
province, 1,625 in Goma, and 3,250 in Kalmie.

See
http://www.reliefweb.int/w/rwb.nsf/0/253bfc93b573d42885256e51006c20e4?OpenDocument.
(accessed on June 4, 2004).
Other reports have confirmed the seriousness of the problem in areas not
treated by this report. See
Initiative conjointe de lutte contre les violences sexuelles faites la femme
et l'enfant (fille et garon), Rapport
de mission effectue dans les villes de Kalmie, Bukavu et Goma du 5 au 18 aout
2003, August 2003; Mdecins Sans Frontires, Mass rape, looting widespread in southeast DR Congo, September 12,
2003; and 14th Report of the Secretary-General on the United Nations
Mission in the Democratic Republic of Congo. S/2003/1098, November 17, 2003.

[4]
Combatants are members of any armed force participating in a conflict. Members
of regular government forces are soldiers. In this report, members of the
RCD-Goma, which was highly organized and at times operated under the command of
the Rwandan army, are also described as soldiers. Members of other armed groups
are described as fighters or rebels. For sexual abuses committed by the Rwandan
army, see Human Rights Watch, Democratic Republic of Congo: The War Within The War. Sexual
Violence Against Women and Girls in Eastern Congo.
(New York:
Human Rights Watch), June 2002.

[5]
While Mai Mai groups under commander Padiri have been integrated into the new
national army, other Mai Mai groups are operating entirely outside the FARDC.

[6]
Between 1999 and 2003, the Ugandan government controlling Ituri attempted to
make Ituri a separate province, and a governor was nominated. However, Ituri
was never recognized as a province.

[7]Report by the Panel of Experts on the
Illegal Exploitation of Natural Resources and Other Forms of Wealth of the
Democratic Republic
of Congo. S/2003/1027,
October 2003. Report by the Experts Group on the Application of the Arms
Embargo Measures imposed by the Security Council in the Democratic Republic of
Congo. S/2005/30, January 2005.

[8]
For details, see Human Rights Watch, Democratic Republic of Congo:
The War Within The War. Sexual Violence Against Women and Girls in Eastern Congo. (New
York: Human Rights Watch), June 2002.

[19] Other victims said they had been sexually assaulted by
FARDC forces; see section below. Human Rights Watch interview with
representative of Centre Olame, July
21, 2004. Additional information in an email by representative of
Centre Olame, October 21,
2004.

[37]
Sometimes called "Interahamwe," (a militia that participated in the 1994
Rwandan genocide) or ex-FAR, (members of the former Rwandan army), many of
these combatants were too young to have participated in the genocide and have
been recruited more recently.

[62]
For sexual crimes by foreign armed forces in Congo, see Human Rights Watch, The
War Within The War.

[63]
See the four Geneva Conventions of 1949 and the two 1977 Protocols Additional
to the Geneva Conventions (Protocols I & II). Other sources of
international humanitarian law are the 1907 Hague Convention and Regulations,
decisions of international tribunals and customary law.Congo ratified the 1949 Geneva
Conventions in 1961, Protocol I in 1982, and Protocol II in 2002.

[66]
Theodor Meron, "Rape as a Crime Under International Humanitarian
Law," American Journal of International Law (Washington D.C.:
American Society of International Law, 1993), vol. 87, p. 426, citing the
International Committee of the Red Cross, Aide Mmoire, December 3, 1992.

[69]
ICRC Commentary on the Additional Protocols of June 1977 to the Geneva
Conventions of 12 August
1949 (Geneva: Martinus Nijhoff, 1987), p. 1375, para. 4539.

[70]
See Catherine N. Niarchos, "Women, War and Rape: Challenges facing the
International Criminal Tribunal for the former Yugoslavia," Human Rights Quarterly (Baltimore: The
John Hopkins University Press, 1995), vol. 17, pp. 672, 674.

[72]Rome Statute of the
International Criminal Court, July
17, 1998, U.N. Doc. A/CONF.183/9.

[73]"It is sufficient to show that the
act took place in the context of an accumulation of acts of violence which,
individually, may vary greatly in nature and gravity." Prosecutor v.
Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Foca case), Appeals Chamber
Judgment, June 12, 2002, IT-96-23 and IT-96-23/1, para.419.

[77]Congo
ratified the CRC in 1990. Article 34 protects the child from sexual
exploitation and sexual abuse. Article 37 provides for the freedom from torture
or other cruel, inhuman or degrading treatment or punishment as well as liberty
and security of person.

[84]
Women, Law and Development International, Gender Violence: The Hidden War
Crimes (Washington D.C.: Women, Law and Development International, 1998),
p. 37.

[85]
Committee on the Elimination of All Forms of Discrimination Against Women, "Violence
Against Women," General Recommendation no. 19 (eleventh session, 1992),
U.N. Document CEDAW/C/1992/L.1/Add.15.

[86]
United Nations General Assembly, "Declaration on the Elimination of
Violence against Women," A/RES/48/104, December 20, 1993 (issued on February 23, 1994). See Article 4, in particular.224 CRC, article
20(1).

[87]
Although the masculine pronoun is used, the ICCPR is applicable without any
discrimination to sex as stated in Article 24(1).

[88]
Article 9 of the ICCPR provides for the freedom from arbitrary arrest,
detention or exile, while Article 23 prohibits forced marriage. Under Article 6
of CEDAW, states are required to take all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of prostitution
of women.

[93] The MLC decided
that the 1972 Military Justice Code and the ordinary Penal Code were to be
applied before these tribunals: Dcret No 037/PRES/MLC/11/02 du 16
novembre 2002 portant organisation des juridictions de l'Arme de Libration du
Congo. The RCD-G also applied the 1972 Military Justice Code in its military trials.

[94]
The new legislation was composed of two separate laws, one on the military
justice system and one on criminal procedure. Loi no. 023/2002 du 18/11/2002 portant code judiciaire militaire; Loi
no.024/2002 du 18/11/2002 portant code penal militaire. The new code
abolished a much-criticized Military
Order Court set up by President Laurent-Desir
Kabila.

[95]
In the RCD-Goma controlled areas, some more prosecutions took place for other
crimes, such as murder.

[96]To
give effect to the general obligation under article 86 of the Rome Statute to
cooperate with the ICC, article 88 specifically requires states parties to
"ensure that there are procedures available under their national law for all of
the forms of cooperation which are specified" under the relevant section.States should therefore review, and where
necessary amend, their national laws and procedures to ensure that there are no
obstacles to its meeting requests for assistance or cooperation from the ICC.The four Geneva Conventions provide that
state parties "undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing, or ordering to be committed,
any of the grave breaches of the present Convention."

[102] Code zarois de la famille, art. 444, 448
and 454. Art. 444 reads: "The husband is the head of the household.
His duty is the protection of his wife; his wife owes her obedience to her
husband." (Unauthorized translation). In practice, women do not always
abide by art. 448, requiring the husband's authorization to initiate legal
proceedings.

[105]
See political analysis of the trial in Human Rights Watch, Covered in Blood, pp. 37-38.

[106]
The civilian judiciary consists from the lowest level up to the highest of
peace tribunals (tribunaux de paix), tribunals
of major jurisdiction (tribunaux de
grande instance), Courts of Appeal and the Supreme Court.

[107]Human Rights Watch, Making Justice Work:
Restoration of the Legal System in Ituri, Democratic Republic of Congo,
September 2004.

[108]
Human Rights Watch interview with the President of the Tribunal de Grande
Instance, Bunia, October 8,
2004.

[109]
For example, the conviction of Commander Rafiki Saba Aimable the former UPC
Chief of Security, who was found guilty of arbitrary arrests, aggravated by
torture and sentenced to 20 years in prison, August 17, 2004.

[110] Court Register, Tribunal de Grande
Instance, Bunia. Three of the ten judgments concerned the same case.

[114]
Documents on the case from AED, Bukavu.In the initial interrogation, Kakule Kambale appears to have given the
age of twenty. However later in court, he declared that he was fifteen years
old. Under Congolese law, sixteen is the age of criminal responsibility. It
seems that the defendant tried to change his age in order to avoid harsh
punishment. His defense lawyer confirms that he was twenty years old.

[115]
Human Rights Watch interview with father of Lisette K., Bukavu, October 16, 2003. A later
test showed the girl had not been infected by HIV.

[118]
Under the Congolese justice system, inherited from the Belgian (Roman civil
law) legal tradition, victims can join the prosecution as partie civile,
alongside the public prosecutor,to seek the payment of damages by the
accused.

[119]Heirs of Justice (Hritiers de la
Justice), Coup de Chpeau au Conseil de
guerre oprationnel de Bukavu, June 2003.

[120]
Representative of Centre Olame, at a consultation with local NGOs on sexual
violence and justice, Bukavu, October
14, 2003.

[122]
Human Rights Watch interview with Djems Kakule Kambale, Bukavu Central Prison, October 16, 2003.
According to Kakule Kambale, the 14-year old girl visited him in his tent and
consented to having sex with him, and took off her own clothes.

[124]
The following analysis is based on the video of the trial, on an interview with
the defense lawyer (telephone interview with defense lawyer in Bukavu, October 20, 2004) and the
lawyer of the victim, October 15, Bukavu, 2003.

[125]
Under Congolese rules of procedure, there is no direct or cross examination;
all questions to which the prosecutor and the defense want answers are
suggested to the judges who then ask them to the witness.

[132]
Human Rights Watch interviews with Military Prosecutor, October 15, 2003 and July 21, 2004, Bukavu. The
Military prosecutor also provided a table with pending and closed cases. The parents of the victim had actually heard
that the rapist escaped before June 2003 and committed another rape, but Human
Rights Watch was unable to confirm this information.

[134] Information from Action Sociale pour
la Paix et le Dveloppement, Goma, October 17, 2003. The conviction
seems to have taken place in 2003.

[135]
Sometimes a rapist seeks to end blame and avoid legal action by marrying the
victim. Community leaders can mediate such arrangements that mostly take place
among a civilian perpetrator and a young girl or woman. It is difficult for the
victims to reject such an option.

[136]
Military Prosecutor of North Kivu, at meeting
on sexual violence co-organized by PAIF and HRW, October 17, 2003, Goma.

[137]
Telephone interview with the prosecutor of Bunia, September 24, 2004.

[162]
E-mail from lawyer in Bukavu to Human Rights Watch, February 28, 2004.

[163]
In South Africa, the creation of special police units
dealing with sexual violence is seen by some as a positive development; this
should be considered in Congo.

[164]
In Congo,
abortion is outlawed except when a doctor considers that the pregnancy could be
fatal for the mother. Human Rights Watch believes
that decisions about abortion belong to a pregnant woman without interference
by the state or others.The denial of a pregnant woman's right to make
this decision violates or poses a threat to a wide range of human rights.
Governments should take all necessary steps, both immediate and incremental, to
ensure that women have informed and free access to safe and legal abortion
services as an element of women's exercise of their reproductive and other
human rights. Government responsibilities relating to women's access to
abortion that are founded on economic, social, and cultural rights must be
implemented according to the principle of progressive realization to the maximum
of available resources. Abortion
services should be in conformity with international human rights standards,
including those on the adequacy of health services.

[167]
Speech of President Joseph Kabila, March 8, 2004, accessed on May 6, 2004 on
http://www.digitalcongo.net/fullstory.php?id=34987.

[168]
The four main target groups are IDPs and returnees, children, demobilized
soldiers, and women and girls victims of sexual violence. Accessed on October 27, 2004 on
www.ocha.unog.ch/fts/reports/pdf/OCHA_1_628.pdf.